Mendoza v. City of New Orleans ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-30029
__________________________
HARRY MENDOZA, NORVEL ORAZIO,
Plaintiffs-Appellants,
versus
THE CITY OF NEW ORLEANS, et al.,
Defendants;
THE CITY OF NEW ORLEANS,
Defendant -Appellee.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
(No. 98-CV-2868-J)
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February 14, 2003
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant police officers were promoted to the rank of captain from the rank of lieutenant as part
of a consent decree in this Title VII lawsuit. The district court denied the officers back pay, however,
because it determined they actually earned more money as lieutenants than they would have earned
had they been timely promoted to captain. Finding no error, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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I. FACTS AND PROCEEDINGS
The facts are undisputed. In August 2000 the district court, pursuant to a 1987 Title VII consent
decree, ordered the City of New Orleans to promote police officers Harry Mendoza and Norvel
Orazio to the rank of captain, with all back pay and benefits, retroactive to August 5, 1998. The City
promoted the officers February 10, 2001, but failed to give them back pay. The officers responded
with a motion for contempt. The district court denied the motion, concluding that the officers were
not entitled to any back pay under Title VII because they had actually earned more money as
lieutenants than they would have earned had they been timely promoted to captain in August 1998.
Lieutenants are non-exempt employees under the Fair Labor Standards Act and earn overtime
compensation; captains are exempt under the FLSA and are not paid overtime. The officers, as
lieutenants, exceeded a captain’s salary by working overtime.
The court relied primarily on Chesser v. State of Illinois, 895 F.2d 330 (7th Cir. 1990) and Bing
v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973) to conclude that Title VII required that the
officer’s full lieutenant income, including overtime, be deducted in calculating back pay. Under that
calculation method, it determined the officers were not entitled to any back pay because they actually
earned more as lieutenants.
II. STANDARD OF REVIEW
A district court’s denial of back pay is ordinarily reviewed for abuse of discretion. See Carpenter
v. Stephen F. Austin State Univ., 706 F.2d 608, 631 (1983). Unlike in Carpenter, however, the
district court did not decide the question of whether the officers were entitled to back pay vel non.
More accurately, the district court decided that the officers were entitled to back pay which,
unfortunately for the officers, totaled zero dollars. The issue for appeal is the proper method of
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calculating back pay under Title VII, which is purely a legal question that we review de novo.
III. DISCUSSION
In calculating back pay under Title VII, “[i]nterim earnings or amounts earnable with reasonable
diligence by the person or persons discriminated against shall operate to reduce the back pay
otherwise allowable.” 42 U.S.C. § 2000e-5(g). We must decide whether the officers’ overtime pay
counts as “interim earnings”; the cases cited by the district court, Bing and Chesser, are directly on
point.
Bing involved a suit by black drivers against a motor carrier for its discriminatory rule that
impeded transferring from the job of “city driver” to the more desirable “road driver.” 485 F.2d at
443-44. The district court awarded Bing the difference between the amount a road driver would have
made during the relevant time perio d and the amount he actually made as a city driver and while
“moonlighting” at various additional driving jobs. Id. at 453. The district court subtracted the
amount that Bing made moonlighting because, had Bing been a road driver, the longer hours would
have precluded moonlighting. Id. Because the amount Bing actually made was more than he would
have made had he not suffered discrimination, the district court awarded him no back pay. Id. On
appeal, this Court determined that Bing’s moonlighting wages were “interim earnings,” making them
deductible from his back pay award. Id. This Court stated that Bing was being treated equitably
since he had actually worked shorter hours and earned more money during the period in which he
suffered discrimination. Id.In Chesser, a police officer was fired in violation of Title VII, and the district court awarded
him back pay for the period between his termination and his rehiring. 895 F.2d at 334. In calculating
back pay, the district court did not deduct the officer’s interim wages as a private investigator. Id. at
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337. The Seventh Circuit reversed, emphasizing that police policy would have prohibited the officer
from working as a private investigator while on the police force. Id. Citing Bing, the court held that
“interim earnings” under Title VII included the earnings from jobs that could not have been worked
had no discrimination occurred. Id. at 338.
The officers argue that Bing and Chesser are distinguishable because those plaintiffs made a
deliberate decision to seek outside employment, whereas these officers stayed with the same
employer. In other words, the officers emphasize that their overtime pay was a result of the
defendant’s failure to promote them, not, as in Bing and Chesser, a result of their own choices.
Setting aside whether the officers chose to work overtime, the distinction is immaterial to the analysis.
Just as in Bing and Chesser, it would have been impossible for the officers to have earned the
disputed wages absent the discrimination.
The officers argue that applying Bing to this case would be tantamount to penalizing their
industriousness for the City’s wrongdoing. In Bing, the Government, as amici, unsuccessfully made
a similar argument, to which we responded: “As a matter of policy the Government’s argument is
strong, and we find it tempting. Unfortunately, however, we find that we cannot escape the statute’s
clear admonition even though we may disagree with its policy.” 485 F.2d at 454. Congress has not
amended the statute, nor has Bing been overruled. We note additionally that the purpose of Title VII
is to “make persons whole for injuries suffered on account of unlawful discrimination.” Floca v.
Homcare Health Serv., Inc., 845 F.2d 108, 111 (5th Cir. 1988) (citing Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1975)). As the district court stated, awarding back pay in excess of a captain’s
salary would make the officers more than whole.
IV. CONCLUSION
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The judgment of the district court is affirmed.
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